<\/p>\n
As discussed above it is clear that equity is a body of rules which was developed to supplement the shortcomings of the common law, some of which can be identified as the rigidity of the system and the inadequacy of appropriate remedies, so it is true to say that one of the most important ways in which equity supplements the common law is through the form of equitable remedies, rights and procedures. Although the remedy which is awarded in common law is damages which takes the form of monetary compensation it can be said that damages will not always be an adequate remedy hence equity has introduced new forms of remedies. One such remedy can be introduced as an injunction which prevents the defendant from doing a particular thing. This particular form of equitable remedy which is known as an injunction supplements the shortcomings of the common law by preventing the defendant from doing a particular act. One of the best examples where injunctions are given by a court can be identified in a situation where there has been a repeated trespass by the defendant. If not for the equitable remedy of injunction the defendant could simply pay the monetary damages which is the main form of remedy available in common law and continue to trespass. However when an injunction is given the defendant would be prevented from doing a certain act or in this case he would be prevented from trespassing. Failure to obey this court order would result in imprisonment for contempt of court. For an example in the case of Shalson v Russo(2003) a person who committed a fraudulent conduct was imprisoned for a period of two years because he was in breach of an equitable injunction.<\/p>\n
Another form of equitable remedy which supplements the shortcomings of the common law can be introduced as the equitable remedy of specific performance which compels the defendant to perform his contractual obligations. As it can be seen there is no remedy available at common law which actually compels the defendant to fulfill his contractual obligations provided that the defendant is willing to pay damages. While damages may seem fair and adequate in the case of normal goods it would not be the same if the goods are unique or special. For an example if a contract is made between a seller and a buyer for the sale of a famous painting by Michal Angelo and the seller in breach of contract decides not to sell, it would be unfair for the buyer if the seller is merely able to pay the damages for the breach of contract and simply walk away since the contracted good is of unique importance. In these circumstances the court will grant the equitable remedy of specific performance where the defendant will be compelled to perform his contractual duties. However it should be noted that an order of specific performance is based on discretion and will not be awarded to a claimant if he hadn\u2019t performed his part of the obligation hence it can be said that it goes in line with the maxim \u201cthose who come to equity must come with clean hands.”<\/p>\n
Furthermore it can be said that there are other forms of equitable remedies such as rectification and recession which supplements the shortcomings of the system of common law.<\/p>\n
However it would also be appropriate to say that there are certain equitable rights that exists which helps in overcoming the shortcomings of the system of common law. One of the most important is the rights of a beneficiary under a trust. It can be said that the system of common law only recognized the rights of a legal owner of a land but not the rights of an equitable owner. For an example if A is the legal owner of a land and B is the beneficiary, A is required to hold the legal title but transfer the profits, interests and benefits of the land to B. but if A decides to keep the profits and interests of the land to himself, B who is the beneficiary of the land has no rights to enforce against A in common law since A holds the legal title to the land. In these circumstances equity will come to the rescue because in equity B\u2019s rights are enforceable against A since B is the beneficiary or the equitable owner of the land. This is evident from the case of Edwards v Lowndes where \u201cLord Campbell CJ had to remind litigants that a trustee is accountable to the beneficiaries of his trust in equity but not at common law.”<\/p>\n
Furthermore it is true to say that there are certain procedures which are in existence that helps in filling out the gaps in the system of common law. One such procedure can be introduced as the summons where the defendant is sent a notice requiring him to personally appear before the court. In this sense he will feel that he is personally accountable for his wrongful conduct. If not for the summons it will have a non deterrence effect on the defendant because only the legal representatives will be obliged to appear before the court.<\/p>\n
Nevertheless after the judicature act of 1875 came into force both equity and common law are administered by the same court which is the supreme court of judicature so it is true to say that the distinction between equitable rights and remedies and the common law rights and remedies were taken away to a certain extent. It can be said that this is a problematic situation because even though the distinction between these two bodies of law has been reduced, the courts still continue to grant the equitable remedies of injunction and specific performance. Although some commentators argue that the functional difference between law and equity have been extinguished after the judicature act it is important to understand that only the administration of the two bodies of law have been fused and that equity stands a separate body of law which continues to develop and supplement the common law. For an example it can be said that the concept of trust in modern equity is still growing and it still continues to supplement the common law. Furthermore it can be said that after the judicature act of 1875 new developments have been made in the field of injunctions such as the introduction of the Anton Piller order and the modern mareva injuction, which was introduced by the cases of Anton Piller KG v manufacturing processes ltd(1976) and Mareva compania naviera SA v International bulk carrires SA(1980) respectively. It can be said that the former case dealt with a situation where the an order was given to the defendant in order to prevent the defendant from destroying evidence which might have been useful to the claimant in order to make a successful claim and the latter case established an injunction which is known as a mareva injunction in order to refrain an individual from disposing his assets before the judgment has been issued in order to ensure the successful payment of a claim. So even today it wouldn\u2019t be wrong to say that the concept of equity does supplement the shortcomings of the common law.<\/p>\n
Apart from the facts mentioned above when referring back to the question it is true to say that \u2018equity only supplements the common law when by doing so that it can prevent unconscionable reliance of the shortcomings of the common law. The truth of this statement is evident from the Earl of oxfords case (1615) where Lord Ellesmere stated that \u201cThe office of the chancellor is to correct men\u2019s consciences for fraud, breaches, wrongs and oppressions of what nature so ever they be and so often and mollify the extremity of law”. From this statement it is evident that the reason which equity came into existence is due to the severity of the common law and in order to prevent the unconscionable conduct of the defendant and it can also be said that the court of equity is a court of conscience which was reaffirmed in the case of Westdeutsche v Islington borough council(1996) and it is clear that it intervenes to supplement the common law in order to prevent the unconscionable reliance on the shortcomings of the common law.<\/p>\n
However it can be said that there is no specific definition of the word unconsionability. As given in the question the word unconsionability can only be understood in accordance with the facts of particular cases. Irrespective of the fact that there is no clear definition of the word unconsionabilty it can be said that \u201cat the heart of unconsionability is the element of some advantage, whether personal or proprietary taken by the defendant which he or she consciously agreed belongs to the claimant.” The concept of unconsionability can well be understood according to the case of Thorner v Major where David worked in his uncle\u2019s farm unpaid because he has been led to believe by the uncle that he would inherit the farm as a result of certain promises made by the uncle to David. In this case David was granted the equitable relief of proprietary estoppels where in fact he was entitled to his uncle\u2019s farm. In accordance with the case it can be seen that \u201cin the context of their dealings and conduct, the requisite degree of unconsionability had arisen whereby it would be inequitable to deny David a right to the farm.”<\/p>\n
It can also be observed that the concept of unconsionability arose in the case of Inwards v Baker where a son was denied the right to his father\u2019s land where the former relying on his father\u2019s promise had undergone a lot to his detriment by constructing a house on the father\u2019s land hence it would be unconscionable if he was denied the right to the land.<\/p>\n
However the above mentioned cases can be contrasted with the case of yeoman\u2019s row management ltd v cobbe(2008) where a claimant stated that it was unconscionable for the defendant to withdraw from an oral agreement but was eventually denied a proprietary right because there was a possibility of further negotiations between the parties.<\/p>\n
In the present context it is important to realize that unlike in the past where a person\u2019s unconscionable reliance on a shortcoming of the common law was decided by the chancellor, in the present when deciding a defendant\u2019s unconsionability certain established principles which are known as the equitable maxims are taken into account. However it should be noted that these equitable maxims were in existence for long period of time and it played a significant part in deciding a person\u2019s unconsionability in the past and it still continues to assist the courts in deciding a defendant\u2019s unconscionable reliance on the shortcomings of common law.<\/p>\n
It can be said that one of the most important maxims of equity is the maxim \u2018equity will not suffer a wrong without a remedy. It is important to understand that this maxim does not mean that equity will provide a remedy for all types of wrongs. It will only provide a remedy where a defendant has relied unconscionably on the shortcomings of the common law. It is also important to understand that equity will only remedy a wrongdoing if it is recognized in common law. It can be said that \u201cno matter how morally wrong a particular social action or behavior might be, it is not appropriate for equity to label it as wrong in law if the law itself will not.” So it is vital to understand that equity is not a court of morality and it only intervenes in order to prevent the unconscionable reliance on the common law through rights and remedies such as proprietary estoppel and specific performance.<\/p>\n
Adding to this it can be said that the maxim \u2018equity looks to substance not form\u2019 can be introduced as an important guideline which the courts use to establish whether a defendant has placed an unconscionable reliance on the shortcomings of the common law. This maxim prevents a defendant from relying on a legal formality, if the reason for the reliance is to take undue advantage of the legal formalities of the law, in other words where the defendant has placed an unconscionable reliance on the law. This maxim simply means that equity will not be defeated because of a failure to comply with a form. An example of this maxim can be brought out in the case of Walsh v Longsdale(1882) where a lease which was granted for a long period of time was recognized as a long lease even though the proper formalities were not followed. However in the present context it is important to understand that in certain situations, especially situations which include the granting of equitable rights certain formalities are followed so it can be said that it\u2019s not solely based on discretion when it comes to equitable rights. For an example when constituting a trust, the legal title to the property should be vested in the trustee if the trust is to be properly constituted so it is true to say that even in equity formalities are occasionally followed.<\/p>\n
As mentioned earlier it is true to say that equity has evolved from the chancellor\u2019s decision as to whether a conduct is unconscionable or not into a set of established principles which are known as the equitable maxims. However it is vital to understand that in the present these maxims are not hard and fast rules and are only used as guidelines when deciding the unconscionable conduct of the defendant and the actual decision as to whether a conduct is unconscionable or not is mostly decided on a case by case basis. This is evident from the case of Waltons stores (interstate) ltd v Maher where it was stated that the decisions which are made in equity vary according to the circumstances of each case.<\/p>\n
In conclusion it can be said that although the distinction between common law and equity has been reduced it is clear that the concept of equity continues to play its role in reducing the severity of the common law by acting against the unconsionability of the defendant so it is true to say that despite the obstacles it faced after the judicature act of 1875 equity has been successful in maintaining its significance in the English legal system by supplementing the shortcomings of the common law.<\/p>\n
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